Consulting Arborist Corner- Say it with a contract!

Consulting Arborist Corner

Haste Makes Waste!

It is winter and you are rushing to get your proposals out for spring. Your proposal to ABC Homeowners Association promises “landscape maintenance that will maintain a beautiful entrance to the neighborhood.” Your proposal is accepted and you begin to mulch, edge, trim, mow, fertilize, and add seasonal flower displays. In your mind, when completed your work has exceeded your goal of creating a “beautiful entrance” and you have fulfilled your contract.

Summer storms come, and a mature tree in the entrance lawn loses a limb which falls and strikes a bicyclist on the road, breaking his arm. Soon after, you receive a legal notice that you have been named in a lawsuit and must supply documents concerning your contract, personnel, and provided services.

You ask, “Why am I being sued?” In your mind, you have completely fulfilled your contract by creating a beautiful entrance to the neighborhood.  However, the plaintiff’s attorney suggests that your proposal implies otherwise.  In the plaintiff attorney’s mind, your contract reads that you are “to maintain the entryway.”  He argues that the entryway includes mature trees and that it was “your duty” to provide proper tree care, and not “performing this duty” resulted in injury to his client.

So how does haste make waste? Because in your haste to get out your proposals, you failed to add a clause such as follows:

Landscape Maintenance-

XYZ Landscape (Professional) proposes to perform landscape maintenance for ABC Condominiums (Assoc) and to utilize the required level of knowledge, education, and training to perform these duties.  Professional shall not be required to detect every condition that may lead to harm or to inspect trees or limbs. Professional is not providing safety or security consultation, other than might be part of standard care performed during landscape maintenance procedures.

Professional shall be required to exercise reasonable care in the performance of all of Professional’s duties under this agreement. The extent of work to be performed by Professional is as described in the contract and does not extend to any other condition of the property that may exist, including fixtures, tree maintenance, or permanent structures.

While this clause is not a guarantee that you will not be sued, it provides you with some coverage by limiting your scope of services.

Consulting Arborist Corner is brought to you by Jud Scott a Registered Consulting Arborist. As a Consulting Arborist, Jud is available to assist you with tree care and tree conflicts that may arise.

Note: Jud Scott does not intend to provide legal advice and would like to thank E. Davis Coots for assistance with the contract language. For further counsel on contracts or expert legal advice, call E. Davis Coots Esq., at Coots Henke and Wheeler 317-844-4693.

~ by daniel on December 12, 2010.

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